[Federal Register Volume 64, Number 81 (Wednesday, April 28, 1999)]
[Notices]
[Pages 22882-22883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10645]



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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 23808; 812-11522]


The Gabelli Equity Trust Inc., et al.; Notice of Application

April 23, 1999.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of an application under section 17(b) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from section 17(a) 
of the Act and for an order under section 17(d) of the Act and rule 
17d-1 under the Act.

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APPLICANTS: The Gabelli Equity Trust Inc. (the ``Trust''), the Gabelli 
Utility Fund (the ``Utility Fund''), and Gabelli Funds, LLC 
(``Gabelli'').

SUMMARY OF APPLICATION: Applicants seek an order to permit the Trust to 
transfer a portion of its assets to the Utility Fund, a newly formed, 
wholly-owned subsidiary that is a registered closed-end investment 
company and to distribute to the Trust's shareholders the shares of the 
Utility Fund.

FILING DATES: The application was filed on February 26, 1999, and 
amended on April 23, 1999.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the SEC orders a hearing. Interested persons may 
request a hearing by writing to the SEC's Secretary and serving 
applicants with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on May 13, 1999, 
and should be accompanied by proof of service on applicants in the form 
of an affidavit or, for lawyers, a certificate of service. Hearing 
requests should state the nature of the writer's interest, the reason 
for the request, and the issues contested. Persons who wish to be 
notified of a hearing may request notification by writing to the SEC's 
Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549-
0609. Applicants, One Corporate Center, Rye, New York 10580.

FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Staff Attorney, at 
(202) 942-0634, or Michael W. Mundt, Branch Chief, at (202) 942-0564 
(Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
SEC's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 
20549-0102 (tel. no. 202-942-8090.

Applicants' Representations

    1. The Trust is a non-diversified, closed-end management investment 
company registered under the Act. The Utility Fund was formed on 
February 25, 1999, and filed a notification of registration on Form N-
8A on February 26, 1999, to register under the Act as a non-
diversified, closed-end management investment company. The Utility Fund 
will file a registration statement under the Act on Form N-2 on or 
before May 21, 1999. Application will be made to list the Utility 
Fund's shares for trading on the New York Stock Exchange. Gabelli is 
registered as an investment adviser under the Investment Advisers Act 
of 1940 and serves as the investment adviser to the Trust and the 
Utility Fund.
    2. The Trust owns 10,000 shares of the Utility Fund's common stock. 
These shares were issued in respect of the Trust's contribution to the 
Utility Fund of $100,000 of initial capital. The persons who currently 
serve as the Trust's directors are also the Utility Fund's directors, 
and the Trust's principal executive officers hold the same offices with 
the Utility Fund.
    3. The Board of Directors of the Trust (``Board'') has approved, 
subject to the requested relief and subsequent shareholder approval, 
the contribution of a segment of the Trust's net assets having a value 
of approximately $75 million to the Utility Fund in exchange for 
additional shares of common stock of the Utility Fund, which together 
with the 10,000 shares currently held by the Trust will constitute all 
of the shares of common stock of the Utility Fund. It is anticipated 
that the contributed assets will consist largely or exclusively of cash 
and short-term fixed income instruments. All the shares of the common 
stock of the Utility Fund then will be distributed by the Trust as a 
dividend to its shareholders at a rate of one share of the Utility Fund 
common stock for every fourteen shares held of the Trust. The 
contribution of the Trust assets to the Utility Fund and the subsequent 
distribution of the Utility Fund shares to the Trust shareholders are 
referred to as the ``Transaction.''
    4. The Board, including all of its directors who are not 
``interested persons'' as defined by section 2(a)(19) of the Act (the 
``Disinterested Directors''), found, among other things, that the 
Transaction will result in the following benefits to Trust 
shareholders: (a) shareholders will receive shares of an investment 
company with a different risk-return profile than the Trust; (b) 
shareholders will acquire the Utility Fund shares at a much lower cost 
than is typically the case for a newly-organized closed-end equity fund 
since there will be no underwriting discounts or commissions; and (c) 
shareholders will be able to seek income and capital appreciation 
opportunities presented by the Utility Fund market segment.
    5. The Trust does not expect that it will recognize significant 
taxable gain on its contribution of cash and securities to the Utility 
Fund in exchange for shares of the Utility Fund. The Utility Fund has 
been advised by counsel that the distribution of shares of the Utility 
Fund to Trust shareholders likely will be a taxable event for Trust 
shareholders and, under certain circumstances, will be a taxable event 
for the Trust. However, the Transaction is not expected to increase 
significantly the total amount of taxable distributions received by the 
Trust's shareholders for the year in which the Transaction is 
consummated and is not expected to result in the recognition of 
significant taxable gain by the Trust. The Board, including all of the 
Disinterested Directors, considered the tax consequences of the 
Transaction and found that the benefits of the Transaction outweigh any 
adverse tax consequences to the Trust and its shareholders.
    6. The costs of organizing the Utility Fund and effecting the 
distribution of the Utility Fund's shares to the Trust's shareholders, 
including the fees and expense of counsel and accountants and printing, 
listing, and registration fees, are estimated to be approximately 
$330,000 and will be borne by the Trust. The Trust will bear the costs 
of soliciting its shareholders' approval of the Transaction and the 
costs incurred in connection with this application for exemptive 
relief. In addition, the Utility Fund will incur operating expenses on 
an ongoing basis, including legal, auditing, transfer agency, and 
custodian expenses that, when aggregated with the fees payable by the 
Trust for similar services after the distribution, will likely exceed 
the fees currently payable by the Trust for those services. The Board, 
including the Disinterested Directors, found that it is appropriate for 
the Trust to bear the Transaction's cost inasmuch as the benefits of 
the Transaction will be for the Trust's shareholder and because 
absorption of such expenses will eliminate any decrease in the net 
asset value of the Utility Fund's shares in comparison to the amount of 
the distribution, which may assist in the pricing of the Utility Fund 
shares on the New York Stock

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Exchange. It is not expected that the Transaction will have significant 
effect on the annual expenses of the Trust as a percentage of its 
assets.

Applicants' Legal Analysis

    1. Section 17(a) of the Act generally prohibits sales or purchases 
of securities between a registered investment company and an affiliated 
person. Section 2(a)(3) of the Act defines an ``affiliated person'' of 
another person to include (a) any person directly or indirectly owning, 
controlling, or holding with power to vote 5% or more of the 
outstanding voting securities of the other person, (b) any person 5% or 
more of whose voting securities are directly or indirectly owned, 
controlled or held with the power to vote by the other person, and (c) 
any person directly or indirectly controlling, controlled by, or under 
common control with, the other person. The Trust may be viewed as an 
affiliated person of the Utility Fund under section 2(a)(3) since the 
Trust will own 100 percent of the Utility Fund's voting securities 
until the consummation of the Transaction. The Utility Fund may 
similarly be considered an affiliated person of the Trust since 100 
percent of the Utility Fund's voting securities will be owned by the 
Trust. The Trust and the Utility Fund also may be viewed as an 
affiliated persons of each other to the extent that they may be deemed 
to be under the common control of Gabelli and because the same persons 
serve as the directors and officers of both companies. As a result of 
the affiliation between the Trust and the Utility Fund, section 17(a) 
would prohibit the Transaction.
    2. Applicants request an exemption pursuant to section 17(b) of the 
Act from the provisions of section 17(a) in order to permit the Trust 
to effect the Transaction. Section 17(b) authorizes the SEC to issue 
such an exemptive order if the SEC finds that the terms of the proposed 
transaction are fair and reasonable and do not involve overreaching on 
the part of any persons concerned, and the proposed transaction is 
consistent with the policy of each registered investment company and 
the general purposes of the Act.
    3. Applicants assert that the terms of the Transaction, including 
the consideration to be paid or received, are fair and reasonable and 
do not involve overreaching by any person concerned. Applicants state 
that the proposed sale by the Trust of a portion of its assets to the 
Utility Fund in exchange for the securities of the Utility Fund will be 
based on the fair value of those assets computed on the day of the 
proposed transfer in the same manner as for purposes of the daily net 
asset valuation for the Trust. Applicants further state that such 
assets are anticipated to consist largely or exclusively of cash and 
short-term fixed income instruments and thus will likely pose few, if 
any, issues with respect to valuation. The Utility Fund stock 
distributed by the Trust in the Transaction will be valued based on the 
value of the Utility Fund's assets. ``Value'' for those purposes will 
be determined in accordance with the provisions of section 2(a)(41) of 
the Act and rule 2a-4 under the Act.
    4. With respect to the Transaction, the Board, including a majority 
of the Disinterested Directors, found that the participation in the 
Transaction is in the best interests of the Trust and that the 
interests of the existing shareholders of the Trust will not be diluted 
as a result of the Transaction. These findings, and the basis upon 
which the findings were made, will be recorded fully in the minutes 
book of the Trust.
    5. Applicants state that the Transaction will be consistent with 
the stated investment policies of the Trust and the Utility Fund as 
disclosed to shareholders. The distribution of the Utility Fund shares 
will not change the position of the Trust's shareholders with respect 
to the underlying investments that they then own. A proxy statement/
prospectus of the Trust and the Utility Fund is being used to solicit 
the approval of the Trust's shareholders of the Transaction following 
the issuance of the exemptive relief. The Trust's shareholders will 
have the opportunity to vote on the Transaction after having received 
disclosure concerning the Transaction.
    6. Applicants also seek an order under section 17(d) of the Act and 
rule 17d-1 under the Act. Section 17(d) and rule 17d-1 prohibit 
affiliated persons from participating in joint arrangements with a 
registered investment company unless authorized by the SEC. In passing 
on applications for these orders, rule 17d-1 provides that the SEC will 
consider whether the participation of the investment company is 
consistent with the provisions, policies and purposes of the Act, and 
the extent to which the participation is on a basis different from or 
less advantageous than that of the other participants. Applicants 
request an order pursuant to rule 17d-1 to the extent that the 
participation of the applicants in the Transaction may be deemed to 
constitute a prohibited joint transaction.
    7. Applicants state that the Transaction will not place any of the 
Trust, the Utility Fund, or existing shareholders of the Trust in a 
position less advantageous than that of any other of such persons. As 
noted, the value of the Trust's assets transferred to the Utility Fund 
(and the shares received in return) will be based on their fair value 
as computed on the day of the transfer in accordance with the 
requirements of the Act. The shares of the Utility Fund will be 
distributed as a dividend to the shareholders leaving the shareholders 
in the same investment posture immediately following the Transaction as 
before, subject only to changes in market price of the underlying 
assets subsequent to the Transaction.
    8. Applicants assert that the Transaction has been proposed in 
order to benefit the shareholders of the Trust as well as the Utility 
Fund, and neither Gabelli nor any other affiliated person of the Trust 
or the Utility Fund will receive fees solely as a result of the 
Transaction. The fee indirectly payable to Gabelli by the Utility 
Fund's shareholders will be the same as the fee currently indirectly 
payable to Gabelli by the Trust's shareholders. In addition, by 
creating the Utility Fund through the Transaction, the Trust is 
effectively enabling its shareholders to receive securities without the 
costs associated with a public offering.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 99-10645 Filed 4-27-99; 8:45 am]
BILLING CODE 8010-01-M